The power of jury nullification has gained recognition, acceptance, and wider use in recent years, and has the potential to profoundly affect the application of criminal justice in the United States.

Jury nullification allows juries to acquit defendants who are guilty as charged, but who they believe do not deserve to be punished. The power to nullify is not widely known among modern laymen and is the subject of much debate. But little doubt exists of a jury’s right and ability to employ it. [1]

Nullification is derived from and supported by several inherent qualities and precedents shared by most common law systems: discouragement of inquiry into the deliberations and motivations of juries; the prohibition of punishment of jurors for verdicts rendered; the inability of criminal courts to instruct juries to render a particular verdict, no matter the strength of the evidence; and, the prohibition of retrying defendants after they are acquitted. [2] [3]

On June 18 of this year, New Hampshire Governor John Lynch signed into law HB 146, commonly known as “the jury nullification bill,” which reads in part, “In all criminal proceedings the court shall permit the defense to inform the jury of its right to judge the facts and the application of the law in relation to the facts in controversy.” The law also states that “the jury system functions at its best when it is fully informed of the jury’s prerogatives.” The law will take effect on January 1, 2013. [4]

New Hampshire’s model jury instruction 3.17 lays out the power of jury nullification. In its model instructions to jurors, it reads, “Even if you find that the State has proven each and every element of the offense charged beyond a reasonable doubt, you may still find the defendant not guilty if you have a conscientious feeling that a not guilty verdict would be a fair result in this case.”

Julian Heicklen, April 2012. Photo: Garret Ean

However, these instructions are not necessarily given to juries. The footnotes to the model instruction specify that “the existence of the jury nullification power does not mean that a jury must be informed by the judge of that power. Jury nullification is neither a right of the defendant nor a legal defense. … The trial court is vested with discretion to determine whether or not the facts of a particular case warrant such an instruction when it has been requested by a party.” [5]

HB 146 therefore strengthens jury nullification by ensuring that all juries in criminal cases will be informed of the power if the defense requests it.

But New Hampshire courts aren’t waiting for the law to take effect. In September, a jury there nullified a marijuana possession charge. Doug Darrell, a 59-year-old Rastafarian, was arrested in 2009 for felony possession of marijuana after a National Guard helicopter spotted the plant growing in his backyard. Darrell’s defense was based around the recently-signed HB 146. During the trial this past September, his attorney persuaded the judge to inform jurors of the power of jury nullification not once but twice. In less than six hours, the jury had returned a verdict of not guilty. [6]

Darrell may owe his freedom to Cathleen Converse, a self-described “straight-laced little old lady” who helped persuade her fellow jurors to nullify the case. Notably, Converse is a participant in the Free State Project, the goal of which is to organize 20,000 limited-government activists to relocate to New Hampshire for the purpose of influencing law and government within the “Live Free or Die” state. The Free State Project helped secure the passage of HB 146 into law. [7]

The right of a juror to refuse to convict can affect a court’s ability even to seat a jury. In Missoula County, Montana, Touray Cornell was charged with possession of one sixteenth of an ounce of marijuana, or about 25 dollars’ worth. During the jury selection process, many of the potential jurors made it clear they were unwilling to convict Cornell of a crime for possession of such a small amount. The presiding judge asked for a show of hands to see who among the 27 potential jurors would be willing to convict. Five raised their hands. [8]

“I thought, ‘Geez, I don’t know if we can seat a jury,’” the judge said in an interview with The Missoulian. A recess was called, and prosecutors worked out a plea agreement with Cornell. [9]

Jurors need not disagree with the law in question to consider the option of nullification. In Brentwood, N.H., Larry Minassian, 53, was charged with criminal threatening and reckless conduct in a confrontation with police. In January, several police officers responded to a 911 call Minassian placed from his home. When they arrived, they found the defendant armed with a knife and uncooperative. Officers testified that they tried unsuccessfully for several minutes to get Minassian to disarm himself and that the man finally charged at them with the knife raised above his head. The officers shot Minassian, who survived. [10]

Defense attorneys asked the jurors to nullify the charges against Minassian, claiming that he was mentally ill and lacked the planning ability required to lure officers to his home with the intent to attack them. Ultimately, jurors rejected the option to nullify, and Minassian was convicted. [11]

Because jury nullification potentially interferes with the enforcement of the law as written, courts may feel threatened by it. In 2011, Julian P. Heicklen, a retired chemistry professor, was charged with jury tampering for promoting the concept. For years, he would regularly stand in front of courthouses in Manhattan and elsewhere, holding a sign saying “Jury Info” and handing out pamphlets explaining the power of jury nullification. Heicklen claimed that he was not tampering with juries because he did not target jurors, but instead handed out the pamphlets to all passers-by, hoping some of them were potential jurors. He believed that being charged with jury tampering indicated the success of his efforts.

“If I weren’t having any effect, would they do this?” Heicklen said in an interview with The New York Times. [12] This past April, the charges against Heicklen were dismissed. [13]